Sheirburn v. De Cordova

THIS case was brought up by writ of error from the District Court of the United States for the western district of Texas.

The bill of exceptions contained the evidence of the title of Sheirburn, the plaintiff, when the defendants objected to the admissibility of said locations and entries because the same were vague, uncertain, and indefinite, and also because surveys thereon were not returned to the General Land Office; but the court overruled said objections, and the defendants excepted thereto. The plaintiffs here closed.

The objection made in this court, viz: that the plaintiff could not maintain the suit upon a head right in the court of the United States, did not appear to have been made upon the trial; but the question seemed to turn upon the validity of the title of the defendants, which was sustained; and upon that ruling the plaintiff brought the case up to this court.

It was argued by Mr. Hale for the plaintiff in error, and Mr. Paschal for the defendants, both on printed arguments.

Mr. Paschal thus brought forward the objection upon which the judgment of this court turned:1. That the plaintiff showed no standing in court-no such title in himself as would enable him to attack the mere naked possession of the defendants, much less their valid paper titles. The plaintiff showed nothing but a mere incipient equity-a naked entry-which of itself, without a survey, according to the decisions of this court, did not detach the land from the public domain.

See Vaughan v. Chesnut, 2 Wash. C. C. Rep., 160.

This case held that the mere entry was not property subject to sale.

In the case of Lessee of Sims v. Irwin, 3 Dallas, 425, (which was a great case,) the subject of entries and surveys was fully discussed, and after great difficulty the court arrived at the conclusion, that in Pennsylvania, the entry payment and survey might constitute a legal title. And in Dubois v. Newman et al., 4 Wash., 77, Mr. Justice Washington refused to go one step further.